A review of the role of Malawi’s law reform agency in criminalization and decriminalization of female same-sex sexual conduct

Abstract

The Law Commission is an institution created by Malawi’s 1995 Constitution with the mandate to review and recommend laws to be in conformity with the Constitution and international law. In 2000, the Commission recommended, for the first time in the history of Malawi, the criminalization of female same-sex sexual conduct. This was enacted into law in 2011. This article examines the role of the Commission in influencing the development of sex- and gender-related laws to address gender inequality and discrimination. It describes the historical context of legal developments since colonial times, leading to the adoption of a democratic constitution and commitment to incorporating human rights norms and standards in national laws. It argues that, in contradiction to its mandate, the Commission played an influential role in the development of a law that further marginalizes women and entrenches sex discrimination. It concludes that the Commission should therefore take responsibility for its actions and review the offending law sua sponte.

Keywords:

• Malawi Law Commission
• CEDAW
• Constitution of Malawi
• female homosexuality
• sex discrimination
• gross indecency

Acknowledgments

I thank Professor Danwood Mzikenge Chirwa, whose response to my e-mail when I was musing over the topic idea turned out to be a moment of enlightenment. I am indebted to the editors, Dr. Olivia Rundle and Dr. Angela Dwyer, and the anonymous peer reviewers for their comments and suggestions. Otherwise, I am solely responsible for the contents.

Notes

1 Section 152 of the Malawi Penal Code criminalizes carnal knowledge of any person against the order of nature.

2 Fitzpatrick v. Sterling Housing Association Ltd. (1997), 4 All ER 991.

3 The Gender Equality Act was passed by Parliament, enacted into law, and become enforceable in 2013.

4 Hansard Parliamentary Debates, November 17, 2010; Hansard Parliamentary Debates, November 18, 2010; Hansard Parliamentary Debates, November 19, 2010.

Additional information

Funding

The research was made possible through support from the Other Foundation www.theotherfoundation.org. The views expressed herein do not necessarily represent those of the Other Foundation.

Notes on contributors

Godfrey Dalitso Kangaude

Godfrey Dalitso Kangaude is an LLD candidate with the University of Pretoria (South Africa), and Director of the Nyale Institute for Sexual and Reproductive Health Governance (Malawi). His research interests focus on gender, sexuality, and law.